The 1976 Supreme Court decision in Griswold v. Connecticut significantly changed the both prevailing notions of the right to privacy and the Constitutional status of reproductive rights in the U.S.[1] The story of Griswold is a long one and exemplifies how certain cases are framed and structured to reach the Court and secure the result the petitioner’s desire. It also illustrates the temptation leftist court members have to deal with local matters at a constitutional level through what is called “Substantive Due Process.”[2] Griswold is one of those cases with which one can accept and agree with the result, yet disagree with its reasoning and wish the court had done otherwise. This is my view.

History of the Case.

Here’s a brief overview: Since 1879, Connecticut had a rarely enforced law making the use of contraceptives illegal. The law prohibited anyone from helping, advising, hiring, or commanding another person to break it, with penalties as if they were the main offender. Before Griswold, there were attempts to challenge this law, but they didn’t get very far. All in all, sixteen attempts, first initiated in 1917, to revise or repeal the law were made by the Connecticut Legislature, but all efforts were blocked.[3] In Tileston v. Ullman (1943), the Supreme Court dismissed a doctor’s challenge because he didn’t show a direct threat to his personal rights.[4] Similarly, in Poe v. Ullman (1961), a woman’s challenge was dismissed for lack of standing. [5]

In 1961, the law was challenged again. Estelle Griswold, the executive director of the Planned Parenthood League of Connecticut, and Dr. C. Lee Buxton, the League’s medical director, opened a health clinic in New Haven. They were arrested and convicted for providing information and advice to married couples seeking contraception, and each was fined the nominal sum of $100. Griswold and Buxton appealed, but the Appellate Division of the Circuit Court and the Connecticut Supreme Court upheld their convictions. The defendants then appealed to the U.S. Supreme Court, arguing that the Connecticut law violated their due process rights under the 14th Amendment.

Griswold and Buxton challenged Connecticut’s law banning the use of contraceptives, arguing that it violated the right to marital privacy. The Court’s 7-2 decision not only overturned their convictions but also expanded the constitutional right to privacy in ways that have proven controversial. Beyond its direct legal effects, Griswold set an important constitutional precedent that influenced later cases, including Roe v. Wade, which extended privacy rights to include the right to abortion.

Roe v. Wade upset many Americans and sparked a process that, for some, [6]undermined trust in the Supreme Court and the rule of law. It seemed the decision was driven not so much by law or constitutional principles as by frustration among liberals who felt they couldn’t persuade legislatures to act in line with their views. Eventually, Roe was overturned, but not before it caused significant damage to the court’s credibility and the rule of law.

Justice Douglas

Justice William O. Douglas wrote the much-criticized majority opinion. Before critiquing the opinion, I want to share a personal anecdote about Justice Douglas. While I was in law school, Justice Douglas came to speak at the University of Texas. He was a most engaging speaker. He was also careful to portray himself as a rather traditional interpreter of the Constitution. During the question-and-answer session, he was very open and charming. I would not want my disagreement with this particular decision and its logic to in any way slander the character of Justice Douglas.

Substantive Due Process, and Penumbra’s

As these blogs have previously mentioned, after the Civil War, the Supreme Court often defended private property rights against government regulation, using substantive due process as its reasoning. The notion was that the Fifth and 14^th Amendments’ protections prohibited government regulation that would inhibit the use of private property. Eventually, social pressure forced the Court to recant. From the beginning, substantive due process had been an innovation. Due process, or what we call “Procedural Due Process,” was originally conceived as a limitation on government actions that deprive citizens of fair judicial proceedings. Basically, Substantive Due Process is the invocation of some kind of pre-existing substantive (as opposed to procedural) natural right that government cannot restrict. Beginning in the 20^thCentury Substantive Due Process fell into disfavor amid the widely held view that prior courts had used the doctrine to invalidate economic regulatory laws with which the court disagreed.

At the beginning of Griswold, Justice Douglas carefully makes a distinction that he believes saves the opinion. Essentially, without altering the ongoing status of substantive due process in economic matters, he states that the Court does have the authority to handle issues involving the right to privacy, which is a non-economic right guaranteed by the Constitution, at least to some degree. Douglas then extends this to the relationships between husbands and wives as relates to birth control.

From an originalist perspective, of course, this viewpoint is completely unfounded. There was no one at the time of the signing of the Constitution or the adoption of the First Amendment who thought these rights included reproductive rights, abortion, birth control, sexual orientation, or other areas that the Court has been led to address since Griswold.

In order to create this right to contraception, Douglas invokes the notion that there are “penumbras” within the Constitution. That is to say that certain rights given under the Constitution have an undefined penumbra, what we might call a “cloud of applicability” that surrounds them, allowing the courts to extend or create certain rights previously unknown to previous generations and perhaps opposed by many in the current generation. Douglas writes:

The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.  Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. [7]

In support of his position, Douglas cites several cases that are only vaguely applicable. In each of the cases he cites, the Court was dealing with an established right under the Constitution as it applies to specific circumstances, not creating a new right. For example, Douglas cites Pierce v. Society of Sisters, in which the right of Catholic parents to put their children in private schools was established by the First Amendment protection of freedom of religion due to the 14^thAmendment.[8] The difference between this situation and Griswold is obvious. The First Amendment applies to the states by virtue of the 14^th Amendment, and it guarantees freedom of speech and religion, not reproductive rights. Each of the cases is cited by Douglas, and supporting his views, can be similarly criticized.

Perhaps the most egregious of Douglas’s references has to do with the case of NAACP v. Alabama. In that case, the state of Alabama attempted to force the National Association for the Advancement of Colored People (NAACP) to provide State authorities with a list of all its members’ names and home addresses. A leading force in the burgeoning civil rights movement, the NAACP was highly controversial at the time, especially in southern states. If its individual members were identified, they would be at risk of harassment and intimidation – or worse – from opponents of civil rights. Such retaliation may even have been the outcome that state officials had in mind when they made the demand. Unspoken by Douglas was the fact that the 14^th Amendment was specifically enacted to protect a minority from interference with its civil rights. No new right was being given by this case; instead, a constitutionally guaranteed right was being enforced.[9]

Let’s take a closer look at “Penumbras.” The innovation of Penumbras has perhaps been the most criticized aspect of Douglas’ logic in the case. The term “penumbra” had several meanings: it described a partial illumination during an eclipse, a surrounding area where something exists to a lesser degree, or, unfortunately, something that covers, surrounds, or obscures. Douglas also used the word “emanation,” which traditionally meant the originating of the world through hierarchical radiations from the Godhead, to refer to “something that emanates or is produced by emanation,” or even an isotope of radon from radioactive decay. It was not originally a legal concept, though there is some precedent for its use where the court is extending existing language by implication.[10] The notion was not considered to allow radical extensions of existing rights or change the constitutional balance between the federal and state governments. In Griswoldit simply indicates what a majority of Supreme Court Justices believe should be included in the Constitution.

The Ninth Amendment

The Ninth Amendment to the Constitution provides that

“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” [11]

During the first 175 years of its history, this Amendment was cited in a total of nine court cases. Some Constitutional scholars began to call it the “Forgotten Amendment.” This is not the place to analyze the Ninth Amendment. It is sufficient to say that “reserving rights to the people” is not the same as “giving the United States Supreme Court the right to determine or create those rights.” As Justice Black eloquently states in his dissent, the Ninth Amendment was passed,

“…not to broaden the powers of this Court or any ‘other department of “the General Government,” but, as every student of history knows, to assure the people that the Constitution in all its provisions was intended to limit the Federal Government to the powers granted expressly or by necessary implication.”[12]

Justice Black is careful in his language, but clearly believes the majority and concurring opinions misused the language of the Constitution, the intent of which was not to broaden the Court’s powers but to assure the people that the Constitution, in all its provisions, was intended to limit the Federal Government to the powers expressly granted or by necessary implication. Where there is a need to protect these rights, it is the duty of the people, through the process of constitutional amendment, to protect them. Thus, Justice Black observes:

I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with ‘the times. The idea is that the Constitution must be changed from time to time and that this Court is charged with a duty to make those changes. For myself, I must with all deference reject that philosophy. The Constitution makers knew the need for change and provided for it. Amendments suggested by the people’s elected representatives can be submitted td the people or their selected agents for ratification.[13]

Over time, Griswold’s influence seems to have shifted the Court’s role, turning it into a kind of “Guardian Council” that believes it has the superior wisdom to decide which laws should be enacted and what limits should be placed on the state’s powers. This wasn’t what the Founders intended. Since Griswold, the case has led the Court to explore issues that should be decided by the people themselves, even those that the United States Supreme Court should not interfere with.

Tenth Amendment

The decision of the Court is made even less palatable by a fair interpretation of the wording of the 10^thAmendment:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.[14]

At the time the Constitution was written, and at the time of the Griswold decision, it was clear that the state’s police powers were the proper place for legislation affecting the health and morals of the people. At the time the Constitution was written, none of the founding fathers would have agreed that the right to control birth control, abortion, homosexual marriage, or a host of other matters was protected by the Constitution. These were matters reserved to the states. The prohibition contained in the 10^th Amendment applies to the United States government. In other words, it prevents the United States government from entering into those matters that have traditionally been reserved to the states unless specifically given to the federal government. The regulation of sexual behavior is not one of those matters.

The impropriety of Griswold is evident in the Connecticut Supreme Court’s refusal to overturn the law, despite having been given the opportunity. The Connecticut legislature also recognized the problem and could have repealed the law. They did not. The voters of Connecticut could have demanded that their constitutional representatives repeal this legislation. They did not (although, I believe that, in time, they would have done so). Under the circumstances, it was not the prerogative of the United States Supreme Court to step in and do for the citizens of Connecticut what they should have done for themselves.

Conclusion

It’s fair to say that Griswold marked a significant shift rather than a minor tweak in how we interpret the Constitution. Essentially, this case was motivated by a situation that many Justices believed aligned with current moral standards and what they personally saw as just. Perhaps they were right. However, it’s important to remember that Supreme Court decisions have real impacts. One notable outcome of this case has been a major expansion of the Court’s power to define civil rights on its own terms, including invalidating statutes that earlier generations would not have thought the Court had the power to hold unconstitutional. This shift, begun with Griswold, has contributed to a steady decline in the Court’s reputation among many people.

All in all, just as in the early 20^th Century expansive Court decisions in line with current sentiment lead the Court into the quagmire of using the 14^th Amendment to prevent economic regulation, in the late 20^th Century another Court was led into the quagmire of using the Amendment to effect social changes that neither Congress nor state legislatures would adopt. In the end, they were led to use their powers in ways that did not do credit to the Court and ended up undermining both the rule of law and social stability and harmony.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] Griswold v. Connecticut 381 U.S. 479 (1965). I will refer to this case hereafter as Griswold.

[2] Substantive due process is a legal principle holding that the Fifth and Fourteenth Amendments’ due process clauses can protect fundamental, unenumerated rights from arbitrary government interference. In its early form, it was used to protect property owners from government regulation of their businesses. More recently, it has been used to limit government regulation of private behavior.

[3] State v. Griswold, 151 Conn. 544, 200 A.2d 479 (1964).

[4] Tileston v. Ullman,  318 U.S. 44 (1943).

[5] Poe v. Ullman, 367 U.S. 497 (1961)

[6] Roe v. Wade 410 US 113 (1973).

[7] Griswold, 484.

[8] Pierce v. Society of Sisters, 268 U. S. 510 (1925).

[9] NAACP v. Alabama, 357 U.S. 449, 462 (1958)

[10] There is some historical validity for the use of the term in judicial decisions, in particular by Justice Holmes, which Douglas has unquestionably read. See, Henry Greely, “A Footnote to Penumbra in Griswold Connecticut.” University f Minnesota Law School Repository  https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1409&context=concomm (downloaded April 20, 2026).

[11] US Constitution, Amendment Nine.

[12] Griswold, at 520.

[13] Id, at 522.

[14] US Constitution, Amendment 10.

This week, I’m going to be looking at a series of books by John Strickland, who an American Orthodox priest and scholar. He has published a look at Western civilization from the perspective of the Orthodox faith. It is in four volumes, the first of which is The Age of Paradise, which takes us from the Acts of the Apostles to around the year 1054, when the East and West divided.[1] The second book, entitled The Age of Division, includes the final separation of the Eastern Orthodox from the Roman Catholic tradition and the Protestant Reformation.[2] The third book, the Age of Utopia,covers the modern world from roughly the Enlightenment until the mid-19^th century.[3]  The final book, The Age of Nihilism, covers the period from Wagner and Nietzsche until today. It is an extremely ambitious undertaking, as you can see.[4]

I think Strickland’s project is important for the future and for understanding the past. The modern world is over, and the way forward is to look to the past for clues to recovering a holistic view of Truth, Goodness, and Beauty. For Christians, the Orthodox tradition offers us a window into the past that can point us to the future. For all Christians, the consequences of the shattering of the universal church that began with the Great Schism are significant. This is particularly challenging for Protestants because it requires reevaluating some of the positions developed during the Reformation in light of the Great Tradition embodied in what I might call “Universal Christianity.”[5]

For a number of years, I’ve been interested in Orthodoxy, which is important and interesting because it did not participate in the Christianization of the West, nor did it participate in the divisions in Western Christianity that produced modern denominations. Furthermore, for most of its history, it’s been a persecuted sect under both the Muslims and Soviet communism. Therefore, since the end of the Byzantine Empire, it has never been without its problems. Theologically, it is a less legalistic and more mystical form of Christianity. Once again, Latin Roman legalism never impacted the East in the same way it impacted the West.

Because it did not participate in the Reformation, it also avoided both what might be called the naked Biblicism of the Protestant and Reformed tradition and the dogmatic legalism of the Roman Catholic Church theology. I well remember being in Moscow during the years just after the fall of the iron curtain and being told by a Russian Baptist that they did not participate in American fundamentalist arguments and didn’t want them brought to Russia.

The Age of Paradise

Protestants and postmodern readers may have a slight difficulty grasping the impact of the title, The Age of Paradise. Protestants may think that the pre-Reformation period is being portrayed as paradisical, and Roman Catholics may think that, in some sense, the period before the Great Schism was an earthly paradise. This is not what Strickland means by paradise. The age of paradise is intended to indicate a time when the church was united in one voice, pointing to what God had done in Jesus Christ and to the establishment of the kingdom of God, as reflected in the church. Strickland is very well aware of the misbehavior of both the early church and the Byzantine emperors. Nevertheless, one might say that this was a pre-dogmatic time, focused on the life, death, and resurrection of Christ, the church as the bearer of that revelation, and the church’s cooperation in improving the human condition within the confines of the undivided Roman empire.

The form of government the church developed during this period was called “Conciliar,” taking its cue from the Council of Jerusalem (Acts 15), where the church addressed difficult questions by convening councils. The most famous of these councils is the Council of Nicaea in the year 325, from which we get the Nicene Creed, which would be finalized in succeeding councils until a full-blown doctrine of the Trinity was established. During this period, the Bishop of Rome, whom we call the Pope, was merely the first among equals. It is a long story, but eventually the bishops of Rome began to claim that they had greater powers in the universal church than the conciliar form of government allowed.

In addition, in the West, under the influence of Augustine and the political demands of Charlemagne’s Empire, the creed was eventually supplemented with what is called the “filioque.” This adds “and the Son” to the creed with respect to the procession of the Holy Spirit from the Father. This may seem like a small, technical matter, but it was not a technical matter at that time.

There are two reasons why the East could not accept this. First, it was not done by a universal council. According to the concealer theory, no change can be made to the creed without the agreement of an ecumenical council of bishops. The pope had no right to insert this into the creed without calling a council. Second, it implies a kind of bi-theism, suggesting that the Father and the Son are independent entities and that the Spirit is derivative. In other words, it is not a proper way of describing the actual relationships. In the east, they felt that the Father was the source of both the Son and the Holy Spirit.

These two issues, together with the gradual cultural and legal separation of the eastern and western empires, resulted in the Great Schism of 1054. Personally, I found this first volume the most intriguing of the books, except for the last, because it is a part of history that we westerners rarely study.

The Ages of Division and Utopia

The Age of Division. The end of The Age of Paradise highlights how Italian politics and the waning influence of the Roman church contributed to widespread corruption. The Age of Division continues Strickland’s account of the rise and fall of key figures and events in Western history from around 1054 until the Protestant Reformation. Beginning with the Great Schism, it examines the papacy’s efforts to introduce meaningful reforms across Western Christendom. Aside from aiming to strengthen the spiritual vitality of church life, the Papal Reformation also inspired other movements, including the Crusades and, more indirectly, a penitential piety that gradually lessened the concept of paradise within Western culture. In other words, the Western Middle Ages embraced a cross-centered rather than resurrection-centered piety.

The book also recounts the story of Eastern Christendom during this period, when the Fourth Crusade and the Turkish invasion finally brought Constantinople to its knees. Yet in Russia, the Orthodox Church continued to foster the culture of the old Christendom, despite increasing isolation from the West and the destruction caused by Ivan the Terrible. The Age of Division ends with the sixteenth-century Protestant Reformation, which both continued the transformation initiated by the papacy in the eleventh century and, in significant ways, brought it to a close.

The Age of Utopia. Protestant scholars, who tend to be critical of the modern world, failed to recognize that the roots of modernity and the issues of the postmodern era trace back to the Reformation. During the Reformation, people in the West first challenged the authority of human tradition by asserting their personal judgment. Initially, this was limited to reforms within the Roman Catholic Church, which most people saw as unfortunate. Eventually, it extended to faith itself and to moral principles. Ultimately, the religious wars of the 16^th century bred deep dissatisfaction with religion among intellectuals. It was the French Revolution that institutionalized this discontent, a concern that continues to influence the modern world.

When Thomas More wrote his great work Utopia, he was fully aware that he was describing nowhere. He also wanted to make clear that the Greek word utopia did not mean paradise. It meant nowhere. Unfortunately, as the modern world developed, especially after the French Revolution and Marx’s work, secular people began to transfer the notion of a paradise existing not on this earth but in communion with God to this world. The result has been a series of misadventures on both sides and much human misery. Both Marxist Communism in all its forms and Nazism are the results of this misguided attempt to create an earthly paradise.

Most recently, we see the romantic ideal of an earthly paradise, reflected in both the left and the right, and the notion that there can be an end of history within history in which all human problems have been solved. I’ve argued elsewhere that this is a grave mistake. Human beings are not capable of producing a paradise on earth. There will always be injustice and room for improvement. The best we can do is make the world a better place for ourselves and our families.

The Age of Nihilism

Strickland completes his survey in The Age of Nihilism. What makes the modern and postmodern world potentially demonic can be traced to the work of Wagner and Nietzsche, both of whom rejected Christianity, sometimes violently, and both of whom substituted a kind of pagan will worship that becomes fully developed in Nietzsche’s “Will to Power.” The first part of the Age of Reason involves the shift from the naive optimism of the Enlightenment to the extreme pessimism of postmodern theory. The first major postmodern theorist was Nietzsche. With Nietzsche came a hatred of Christianity and religion, a complete rejection of the Western Christian tradition, and the placement of human fulfillment in the Will, which finally reached a pathological level. Whatever the defenders of Wagner, Nietzsche, and their postmodern followers may say, there is a direct line from them to the Holocaust and to the deprivations of 20^th-century communism in the East and West.

Both Wagner and Nietzsche were classic megalomaniacs (narcissists), unable to sympathize with others or to keep their thoughts and actions within moral boundaries. Ultimately, their ideological commitments led to the modern and postmodern glorification of power. This obsession with power is not unique to Marx. Western capitalism, in all its forms—social and otherwise—has been influenced by the idea that power can create a paradise. Strickland spends a significant amount of time criticizing Western liberalism (in its original sense) to show that the three major experiments of the modern world—Soviet communism, Nazi oligarchy, and Western liberal social democracy—have all failed to offer a meaningful purpose for human life or a guiding principle that limits the use of power to achieve political goals. The result has been progressive cultural and political decay in the East and West.

Conclusion

Strickland’s work is truly monumental. The attempt to summarize Western civilization from an Eastern perspective over more than 2,000 years is a monumental task. If one quibbles with an occasional conclusion, most of what it said is both historically accurate and a reasonable interpretation of the history involved. If occasionally I became overwhelmed by the amount of detail being delivered, generally speaking, the books kept my interest from beginning until end. Most importantly, it was fascinating to look at certain historical events that we westerners are familiar with from the perspective of a different cultural heritage.

People who are mostly secular might not find the entire series particularly appealing or the main message it aims to convey. However, they will definitely find the historical details within the book quite enlightening. For instance, I was especially captivated by the era spanning from the fall of the Roman Empire, during Augustine’s lifetime, to the reign of Charlemagne and his successors. This is a fascinating period of history that rushed by in school!

For Christians and others seriously concerned about the state of our culture, the four volumes, especially The Age of Nihilism, are long, serious commentaries on the difficult situation in which Western civilization finds itself. Strickland holds that Westerners need to recover their Eastern heritage to overcome our current cultural decline. I believe he makes a very good case for this view.

I will give Strickland the final word:

Without a transcendent anchor, the saeculum inevitably degenerates into self-destruction. The holy father Augustine, who more than any other established the concept of secularity, would have frozen in horror, had he foreseen the fruits of cosmological desecration. The secular disorientation of the West degenerated into an indignation with no outlet but violence. This was especially true after the rise of Communism, Nazism, and liberalism. Within the space of a single half century, for instance, collectivization (10 million peasants killed), General Plan East (45 million Eastern Europeans killed) and Roe v. Wade (65 million unborn children killed) made this clear enough. Only repentance can save the world. [6]

My reason for these blogs is to hopefully, in some small way, assist in forestalling the continuation of this tragedy.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] John Strickland, The Age of Paradise: The Rise and Fall of What the West Once Was, Vol. 1 (Chesterton, IN: Ancient Faith Press, 2019). The author has a website (https://johnstrickland.org/), which I recommend and used in preparing this blog.

[2] John Strickland, The Age of Division: Christendom from the Great Schism to the Protestant Reformation Vol.2 (Chesterton, IN. Ancient Faith Press, 2020.

[3] John Strickland, The Age of Utopia: Christendom from the Renaissance to the Russian Revolution Vol. 3 (Chesterton, IN. Ancient Faith Press, 2021.

[4] John Strickland, The Age of Nihilism: Christendom from the Great War to the Culture Wars Vol. 4 (Chesterton, IN. Ancient Faith Press, 2019.

[5] This term “Universal Christianity” avoids the use of the word Catholic. It is nearly equivalent to what C. S. Lewis called “Mere Christianity.”

[6] Age of Nihilism, 380.

The Eleventh Amendment is the first Amendment to the Constitution after the Bill of Rights. Congress passed the Eleventh Amendment, and the states ratified it on February 7, 1795, though it did not take effect until 1798. The amendment states that “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It was enacted to overturn the Supreme Court’s 1793 decision in Chisholm v. Georgia. I think it is worth studying because, although it was later overturned by amendment and clearly stepped beyond the intentions of those ratifying the Constitution, those involved were attempting to delineate a proper relationship between the Federal and State governments and to ensure the payment of war debts. It illustrates three important realities: (i) well-meaning people can misunderstand the public’s willingness to accept innovations, (ii) a tradition (in this case American and English law) does not speak with one voice, (iii) the amendment process is part of judicial correction when errors are made.

The Issue

One of the most significant issues arising from the Constitution’s adoption concerned the proper balance of power between the national government and the states. Federalists desired a strong central government that would unify the states into a single nation. Anti-Federalists feared and opposed a federal government that could threaten their status as independent, sovereign political entities. We continue to struggle to find a workable and effective solution to the delicate problem of implementing our system of divided sovereignty between the states and the federal government.

This concern as regards judicial power was reflected in Article III of the Constitution. Article III covers lawsuits between states, between a state and citizens of another state, and between a state and foreign states, citizens, or subjects. During ratification debates, three states suggested placing explicit limits on suits against states, but these proposals were unsuccessful. As was often the case when agreement could not be reached, the document was vague regarding the full scope of the federal judiciary’s powers.

Those who opposed allowing states to be sued in federal court had several concerns. Most importantly, the states had accumulated substantial debt during the Revolutionary War. Although many of these debts had been assumed by the federal government under Alexander Hamilton’s economic plan of 1790, state officials still had to cope with the possibility of being overwhelmed with financial claims by citizens of other states. They also feared being taken into federal court by frequent challenges to state land grants. A less concrete but equally important worry was based on the idea of state sovereignty. If states could be sued in federal court, many believed they would lose their sovereignty and independence as political units and become entirely subject to the federal government. These concerns all came to a head when the Supreme Court decided Chisholm v. Georgia. 

Legal Debates Before Chisholm

Generally speaking, what we call “sovereign immunity” prevents lawsuits against a government without its permission. As early as Blackstone’s Commentaries on the Laws of England, it was the law in England that “no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him.”

The delegates to the Constitutional Convention did not debate or address the issue of state sovereign immunity. However, Article III described the judicial power in language suggesting that states would be subject to suits by individuals in federal courts under certain conditions. This issue became a point of contention during the ratification debates. Anti-Federalist George Mason of Virginia asked, “Is the sovereignty of the State to be arraigned like a culprit, or private offender? Will the States undergo this mortification?” Patrick Henry argued that if states could be sued for debts, holders of the “immense quantity of depreciated Continental paper money in circulation at the conclusion of the war” would be able to demand repayment of the face value of these notes “shilling for shilling.”

Federalists, such as Alexander Hamilton, John Marshall, and James Madison, tried to ease concerns by claiming that states would not be forced to act as defendants in federal courts, regardless of what Article III states. Hamilton wrote in Federalist No. 81, “It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent.” During Virginia’s ratification debates, Madison argued that states would need to sue in federal court to bring a claim against a citizen of another state but that they would have immunity unless “a state shall condescend to be a party.” Marshall agreed, saying, “It is not rational to suppose that the sovereign power shall be dragged before a Court. The intent is to enable States to recover claims of individuals resident in other States.” Patrick Henry ridiculed these claims, once again pointing to Article III’s language about suits involving states “without discriminating between plaintiff and defendant.”

This brings us to Chishom v. Georgia and an early example of judicial overreach that failed.

The Facts and Runup to Chisholm

Chisholm v. Georgia originated from actions taken during the early years of the Revolutionary War. [1] In 1777, American troops stationed in Georgia needed supplies. Commissioners, authorized to act on behalf of the Georgia government, purchased the necessary items from Robert Farquhar, a South Carolina merchant. Although the commissioners had funds from the state treasury to pay Farquhar, they did not do so. Farquhar died in 1784 with the debt remaining unpaid. His executor, Alexander Chisholm, petitioned the Georgia legislature for payment, but the petition was denied in 1789.

Following this denial, Chisholm filed a lawsuit against the state in the U.S. Circuit Court for the District of Georgia. Georgia argued that the state had sovereign immunity and could not be compelled to appear as a defendant. The case was heard by Supreme Court Justice James Iredell, riding circuit, and U.S. District Judge Nathaniel Pendleton, both of whom agreed that the court lacked jurisdiction. In 1792, Chisholm brought a suit in the Supreme Court of the United States, where Georgia again claimed sovereign immunity.

The Supreme Court’s Ruling

After the case was heard, the Supreme Court held that Georgia did not have sovereign immunity and could be sued by individual plaintiffs in federal court. Each justice wrote a separate opinion, with Chief Justice John Jay and Justices John Blair, Jr., James Wilson, and William Cushing in the majority, and Justice James Iredell dissenting. Chief Justice Jay noted that Georgia could not justify its objection simply because it was named as a defendant in federal court, since the Constitution allows suits between states, in which states will inevitably be defendants. The objection, therefore, was based on the fact that the plaintiffs were individual citizens of another state. “That rule is said to be a bad one,” wrote Jay, “which does not work both ways.” In other words, if Georgia had the right to sue citizens of different states in federal court, it would be unjust for those citizens to be unable to sue Georgia.

Jay then examined the language of the Constitution, which extended the judicial power “to controversies between a state and citizens of another state.” He argued that these words were “express, positive, free from ambiguity, and without room” for implied exceptions. To accept such an exception, Jay wrote, would “contradict and do violence to the principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as the many against the few.”

James Wilson’s Significant Contribution

While other justices based their decisions on the text of the Constitution, James Wilson believed the case depended on the question, “Do the people of the United States form a Nation?” Thus, Wilson begins his analysis with these words:

The fundamental nature of the issue presented by the case was aptly characterized by Justice Wilson: This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this— “do the people of the United States form a Nation?”[2]

The portion of his decision that is most important is his argument that sovereignty belonged to the people, who, by ratifying the Constitution, had committed themselves to the nation’s laws. States, like the individuals within them, must not be exempt from enforcing those laws.[3]

Justice Wilson began his analysis of Georgia’s claim of sovereign immunity by contesting the appropriateness of the very term “sovereignty” with regard to the new Constitution:

To the Constitution of the United States the term Sovereign, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves “Sovereign” people of the United States, But serenely conscious of the fact, they avoided the ostentatious declaration.[4]

In Chisholm v. Georgia, Wilson observes that “the term sovereign has for its correlative, ‘subject,’” and in this context, it cannot be applied because it is not found in the U.S. Constitution. The Constitution mentions “citizens,” but never “subjects.” In other words, Americans are citizens of the United States of America, but not subjects of its government. This is an important difference between the situation in the United States and Europe. Americans were never subjects at any time during their post-revolutionary history.

Justice Wilson rejected the idea of “subject” regarding the case because he understood the Government of Georgia to be republican, meaning it is based on the principle that sovereignty resides in the body of the people. Wilson also argued that Georgia’s citizens, when ratifying the Constitution, did not surrender their supreme or sovereign power to the state; instead, they kept it for themselves. Therefore, in terms of the Union’s purposes, Georgia should not be considered a “sovereign state” by the European definition.

In summary, Wilson states that if the word “sovereignty” is used at all, it refers to the people, not to any government formed by the people. I wonder if it might be a better course of action to consider the United States as consisting of three distinct sovereignties:

1. The Ultimate Sovereign (the people of the United States);
2. The Local Sovereign (the several states, sovereign in every area not specified in the Constitution); and
3. The National Sovereign (the government created by ratification of the Constitution, sovereign only within its Constitutionally prescribed areas of responsibility).

The analysis of Justice Wilson in Chisholm v. Georgia best leads one to conclude that the sovereignties of the states and the national government are, under our system of government, derivative sovereignties. The states are Local Sovereigns with the powers that were designated for them in their constitutions, and the federal government is the National Sovereign with the powers that were given to it by the Constitution. The people, however, retain ultimate sovereignty over both.

Chief Justice Jay’s opinion supports the view that the United States is characterized by multiple sovereignties, as he uses the term “joint and equal sovereigns.” In his opinion. [5]  Jay affirmed the latter went on to affirm the “great and glorious principle, that the people are the sovereign of  this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined.”[6]

This kind of language supports the view that, in the United States there is one ultimate sovereign (the people) and two subordinate sovereigns, each sovereign only within the limits granted by the constitutions that formed them.

Aftermath and Legacy

In his dissent, Justice Iredell asserted that every state was “completely sovereign” other than where its powers had been delegated to the federal government. On the nature of sovereignty, Justice Iredell had the following view:

Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered. [7]

According to Iredell, no suit by private citizens against a state could proceed without the state’s consent unless there was English common-law precedent to support such an action. Finding an English case allowing a claim against the Crown to proceed inapplicable to the present case, Iredell believed that the Supreme Court lacked jurisdiction over the plaintiffs’ claim against Georgia. After a Constitutional Amendment, Iredell’s view prevailed.

Interestingly, although the justices did not agree on the merits of the case, they did agree that the Ultimate Sovereign in the United States is the people themselves, and each of the national and state governments are local and national sovereigns, with only such powers as the Ultimate Sovereignty of the people has given them. This is consistent with the language of the Constitution that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[8]

Conclusion

I wouldn’t spend an entire blog on just one Supreme Court case if I didn’t truly believe it was so important. It’s not only crucial for understanding the history of the Constitution and the 11^th Amendment, but also for shaping how we view our government today. Sadly, many Americans have come to see the national government as the ultimate authority. After the Civil War, the balance of power between state and federal governments shifted, with the federal government becoming the more powerful of the two. But, it’s important to remember that nothing in the Civil War amendments takes away the ultimate sovereignty of the people of the United States over their government.

As our national, state, and local governments develop increasingly detailed rules that influence almost every aspect of our daily lives, it’s important to remember that this can sometimes feel like overreach that infringes on the rights of the people. While the federal government has expanded its regulatory scope and built a large bureaucracy, it’s also vital to remember that the Constitution limits the areas the federal government can regulate. When definitions of federal powers broaden too much, they can unintentionally encroach upon the sovereignty that rightfully belongs to the people.

In an increasingly urban and socially and economically interdependent society, it is easy to forget the people’s ultimate sovereignty as governments struggle to solve social problems. Nevertheless, both state and federal governments need to remember that they serve the people, not rule over them.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved

[1] 2 U.S. (2 Dall.) 419 (1793).

[2] Chisholm v Georgia, 2 U.S. (2 Dall.) at 453 (Wilson, J.)

[3] Randy Barnett,” The People or the State?: Chisholm v. Georgia and Popular Sovereignty” 93 Va. L. Rev. 1729-1758 (2007).

[4] Chisholm v. Georgia, 454. See also, Barnet above, at 1731.

[5] Id, 477 (Jay, C.J.).

[6] Id, 479

[7] Id, 435,

[8] U.S. Const. amend. X.

Lent is a time for focused prayer. Don’t get me wrong, prayer is always essential to Christian discipleship, growth, community, and life. But, Lent is intended to be a time of deepening prayer, especially that prayer which leads to a change of life.

On my bookshelf, I have several books on prayer, and I’ve read many of them. However, prayer is like playing an instrument or any sport. The real question isn’t, “How many books have you read?” but rather, “How much have you practiced?” Prayer isn’t mainly about knowledge; it’s about practice. The best way to learn to pray is simply to pray.

Throughout my ministry, I treasured the weekly practice of including a prayer list in our bulletin, which we prepared together as a staff to support and uplift our congregation. Every Tuesday at 9:30, a dedicated group of staff members gathered in prayer, creating a special sense of community. Years ago, during a denomination transition, we started holding heartfelt prayer vigils on the first Friday of each month, providing a prayer guide outside the chapel and hosting services at 7:00, 12:00 noon, and 6:00 in the evening. Although attendance varied, these prayer days were meaningful moments for us to pray for our church, community, and the world all day long. The Session also regularly set aside time to pray for our church’s needs during each meeting, often for an extended period, which we found deeply encouraging. Additionally, our Men’s Saturday reunion group spent the first Saturday of each month in prayer, meditation, and seeking to strengthen their connection with God, fostering a wonderful sense of fellowship and spiritual growth.

Paul’s Good Advice.

In this blog, I want to begin with a verse from Philippians. The Philippian church was a lively and supportive community, standing firmly with Paul during tough times. They were genuinely generous, giving freely to help the church in Jerusalem when it needed it most. Like any church, they weren’t perfect—after Paul’s departure, they faced challenges such as false teachers and other struggles. As we examine today’s passage, it’s clear that two members, Euodia and Syntyche, are in disagreement. Paul’s advice to rejoice, pray, and focus on what is true and good stems from his response to this situation.[1]

Therefore, my brothers and sisters, you whom I love and long for, my joy and crown, stand firm in the Lord in this way, dear friends! I plead with Euodia and I plead with Syntyche to be of the same mind in the Lord. Yes, and I ask you, my true companion, help these women since they have contended at my side in the cause of the gospel, along with Clement and the rest of my co-workers, whose names are in the book of life. Rejoice in the Lord always. I will say it again: Rejoice! Let your gentleness be evident to all. The Lord is near. Do not be anxious about anything, but in every situation, by prayer and petition, with thanksgiving, present your requests to God. And the peace of God, which transcends all understanding, will guard your hearts and your minds in Christ Jesus. Finally, brothers and sisters, whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable—if anything is excellent or praiseworthy—think about such things. Whatever you have learned or received or heard from me, or seen in me—put it into practice. And the God of peace will be with you (Philippians 4:1-9).

The Problem: Our Human Condition.

Prayer begins with understanding the human condition. The conflicts between the two people in Philippi remind us that, at times, we are not in God’s will. We are naturally self-centered, self-interested, short-sighted, seeking temporary pleasures and trivial pursuits, prone to worry and anxiety, sometimes jealous of those who have more, and inclined to form factions. Not everyone has all of these tendencies, but we all have some. These issues exist because none of us, by nature, possesses the spiritual connection with God that helps us avoid them. The story of Genesis and the fall illustrates our human condition and its real-life consequences. Since the fall, humans have struggled to stay connected with God.

I’m confident you will believe me when I say that Kathy and I would never, ever quarrel. I’m sure that none of you who are married ever argue. However, I have noticed that couples do argue, and when human beings argue, we often stop communicating. When communication breaks down, our problems rarely improve. In fact, I’ve observed over the years that many quarrels originate from a failure of loving communication from the start!

Our relationship with God is similar. Our tendency is to push God to the edges of our lives, maybe only on Sunday morning or a few moments each day if we remember. The result is that we lack the ongoing relationship and communication with God needed to experience the joy and peace He wants for us. When we do reach out to God, it’s often because of an immediate problem. We communicate urgently, but without the depth of a well-developed relationship.

The Solution.

The first step in shifting our focus from ourselves and our desires to God and His desires for us is to rejoice and be thankful for the gift of life and what God has done. It’s interesting that immediately after Paul comments on the quarrel in the Philippian church, he says, “Rejoice in the Lord always, and again I say, Rejoice!” (v. 4). A life of prayer starts with rejoicing in faith. Our rejoicing may not always be free from pain, fatigue, or anxiety. Still, we know there is a God who cares, so we pray to Him.

Second, Paul tells the Philippians to be gentle and not to worry, but to do everything with prayers and petitions, letting God know what we need. It is as if Paul is saying, “Once you have your attitude right about God and have begun to praise God and rejoice in your salvation by faith, then start talking. Let God know what you need and how much you need it. Just let God know what is on your heart—everything that is on your heart.” Once again, the point is not that we will never be anxious. The point is to constantly turn our anxiety over to God.

Third, Paul encourages us to be thoughtful and focus on things that are true, noble, right, pure, lovely, and admirable. By doing so, we open ourselves to be filled with the Spirit of God—the True, the Good, and the Beautiful. Thinking about these virtues keeps our hearts centered on the One who embodies them all—True, Good, and Beautiful. When we fill our minds with these good and lovely things, our prayers naturally become more focused on Godly desires.

Finally, Paul encourages the Philippians to reflect on what they have seen him do, how he has lived, the results the Gospel has brought in his life, and to put the Gospel into practice. It is only when we rejoice, pray, grow wise, and actively apply the grace we’ve received that God’s peace will fill our hearts. Just as study should lead to action, prayer should lead to action as well. We need to practice what we pray for.

When I was in active ministry, our congregation supported The Presbyterian Outreach Foundation, which funds missions in the Presbyterian Church (USA), the Evangelical Presbyterian Church, and other denominations. One member of the Outreach Foundation’s Board of Trustees, who lives in the Southeast, is a true prayer warrior. Occasionally, I would go into my office and find a prayer message on my phone. Sometimes he called and prayed. I also received emails with words of wisdom and prayers.

I have watched my friend for some time now. He is not a pastor; he is in business. He served on a financial-related committee of the Outreach Foundation. He is almost always cheerful and gentle. He is clearly prayerful. His prayers are powerful and very touching. His comments are almost always wise and thoughtful. In his personal and professional life, he practices what he believes and prays for. He does not just pray; he lives a prayerful life.

An Approach.

In the past, I have written about and preached the ACTS method of Adoration: Confession, Thanksgiving, and Supplication, as well as other prayer methods. Today, I want to discuss a way of prayer that can help each of us grow in our personal prayer life.  In writing this, I found a meditation in one of my prior sermons:

In prayer, three things happen: We come in touch with God and God’s will, we come in touch with how our will and God’s will can become one, and we come into unity with our brothers and sisters in Christ. When our will and God’s will become one, the power of God’s wisdom and love becomes unleashed in our personal lives. When God’s will and the will of a community of believers become one, the power of God’s wisdom and love is unleashed in the world.

The first step in building a prayer life is alignment. If we only ask for things, our prayer life will eventually burn out. None of us receives all of our prayers answered, and we all have times when we ask God for things we cannot or should not have. As we listen to God and align our prayers with His will, we gradually begin to pray within His will. When that happens, our prayer life becomes more powerful.

Second, one reason we gather and pray together on Sunday mornings—whether in worship, small groups, or classes—is that when our church, classes, and small groups pray collectively, our wills and prayers begin to align with God’s will. This is why Jesus wanted his church to be a “house of prayer.”

Think of alignment like a laser. Lasers are essentially light beams that have become ‘coherent”—meaning all the beams of light are traveling in the same direction. As we pray and listen to God, our wills and God’s will become aligned. We stop asking for things that are not in God’s will. When a group prays and listens to God, its prayers become aligned—meaning we all pray within God’s will. When that happens, God’s power is unleashed in our families and communities. This is one reason spouses should pray together.

Second, we should pray constantly. We all need quiet time. We all need to have special times of prayers at home and church. At the same time, we should try to develop the habit of constant prayer—a kind of prayer without ceasing. Paul says we should pray in everything, and that means about everything and all the time. When we are worried, tired, stressed, short, jealous, angry, etc. we need to pray. When life is not going our way, we need to pray.

Kathy and I have been exploring Orthodoxy lately. One of their spiritual disciplines, which I’ve been trying to include in my daily walk, is reciting the Jesus Prayer: “Lord Jesus Christ, son of God, have mercy upon me, a sinner.” The idea is to repeat that prayer so often that we pray it in our spirit even when we’re doing something else. I’m not quite there yet, but I can say it makes a big difference when I remember to dedicate my daily walk to prayer.[2]

Another habit Kathy and I have tried to develop is what I will call “Listening Prayer” or a “Prayer of Silence.” Twice a day, we sit for between ten or twenty minutes in silence, listening for God. In some groups, this is called a “Centering Prayer.”

If we want to align ourselves with God and His will, we need to develop the habit of listening. It’s hard for those of us who are active and used to being busy. It’s not easy for me either. But alignment and consistency in prayer are not natural; they are gifts that God gives to those who wait and long to be united with Him in important spiritual matters.

Conclusion.

Most of us know that on the night before he was crucified, Jesus went to pray in the garden. He prayed to be relieved of the duty God had placed upon him. He ended the prayer with “Not my will, but your will be done” (Matthew 26:39). In other words, Jesus’ human will had aligned with God’s will, and now he had the strength to endure what was about to happen. Not all of our prayers will be in easy times. Not all will have pleasant results. Our prayer, in the end, is for our human will to embrace God’s will so we may be filled with his power, whatever the circumstances.

Copyright 2026, G. Christopher Scruggs, All Rights Reserved 

[1] The scholarly sources for this blog include William Barclay, “The Letters to the Philippians, Colossians, and Thessalonians” in The Daily Bible Study Series Rev. Ed. (Philadelphia, PA: Westminster 1975) and Richard R. Melick, Jr., Philippians, Colossians, and Philemon” in The New American Commentary vol. 32, (Nashville, TN: Broadman Press, 1991).

[2] The actual words of our short prayers can vary. We might say the classic version of the Jesus Prayer, or we might say, “Lord Jesus Christ, have mercy on me.” We may say, “Lord Jesus, have mercy.” Ancient monks used another version, “Lord, make haste to help me. Lord, make speed to save me,” all day long. There is nothing sacred about the words themselves. Sometimes I use another Orthodox prayer, “Holy God, Holy Mighty, Holy Immortal, have mercy on us.” For Protestants,  a verse from the Bible or another prayer might do just as well. The point is to come closer to God.